The judge, at the trial, seems to us to have taken a wrong view of the nature and legal effect of this contract. The promise of the defendant was to withdraw his suit against the officer — an act which the plaintiff had an interest in having done. He did not withdraw it, and consequently the promise was broken. He is entitled to a verdict for nominal damages for the breach, if nothing more. For every breach of a promise made on good consideration, the law awards some damage.
The court are inclined to the opinion that if the plaintiff had paid the officer his costs, he might recover it in this suit, as incidental damages ; and that they may still be recovered, provided they are paid at any time before damages are assessed in this action. The breach of promise to withdraw that action is the gist of this action, and all damages, necessarily resulting therefrom, sustained by the promisee up to the time of the assessment of damages, may be properly embraced in such assessment. It was not a mere contract of indemnity; it was a contract to do something beneficial to the plaintiff, the failure to do which necessarily subjected the plaintiff to loss. For that loss, when actually incurred, the defendant is liable.
Exceptions sustained.